Nominal Defendant v Lane

Case [2004] NSWCA 405


CITATION: The Nominal Defendant v Lane [2004] NSWCA 405
HEARING DATE(S): 6 October 2004
JUDGMENT DATE:
17 November 2004
JUDGMENT OF: Giles JA at 1; Ipp JA at 95; Tobias JA at 96
DECISION: (1) Appeal allowed in part; (2) Cross-appeal dismissed; (3) Set aside the judgment for $2,688,382, and in lieu thereof judgment for such substituted amount calculated in accordance with these reasons as the parties notify the Registrar within seven days, taking effect on 30 January 2004; (4) Liberty to apply in the event of disagreement over the substituted judgment amount; (5) Appellant pay 90 per cent of the respondent's costs of the appeal and cross-appeal.
CATCHWORDS: Motor vehicle accident - unregistered vehicle - claim against Nominal Defendant - LIABILITY - claim if vehicle was capable of being registered after "repairs of minor defects" - identification of defects - whether minor defects - whether error in applying substantially economic test of ease and cost of repair of defects - no error - CONTRIBUTORY NEGLIGENCE - plaintiff and driver both drunk - whether judge paid regard to plaintiff's subjective appreciation of driver's condition - found plaintiff knew or ought to have known of driver's condition - no error - DAMAGES - plaintiff brain damaged - probable that plaintiff would have worked as nursing assistant - whether error in allowing a sum for possibility that plaintiff would have become enrolled nurse - consideration of s 126 of Motor Accidents Compensation Act - whether permissible to allow for possibility that future circumstances would be better than most likely future circumstances - can make such an allowance - result correct although requirements of s 126 not dealt with - RESPITE CARE - gratuitous care for ten years then professional care - whether error in allowance for respite care for period of care by professional carers - error made - allowance made for respite care for period of gratuitous care. D
CASES CITED: Applin v The Nominal Defendant [2004] NSWCA 217;
Hodgson v Crane (2002) 55 NSWLR 199;
Joslyn v Berryman (2003) 214 CLR 552;
K Mart Australia Ltd v McCann [2004] NSWCA 283;
MacArthur Districts Motor Cycle Sportsmen Inc v Ardizzone [2004] NSWCA 145;
Malec v J C Hutton Pty Ltd (1990) 169 CLR 638;
Norris v Blake (No 2) (1997) 41 NSWLR 49;
Penrith City Council v Parks [2004] NSWCA 201.

PARTIES :

The Nominal Defendant - Appellant
Farren Lane - Respondent
FILE NUMBER(S): CA 40132/04
COUNSEL: D J Russell SC & W Chipchase - Appellant
P Semmler QC, P Mahoney SC & G Young - Respondent
SOLICITORS: Sparke Helmore, Newcastle - Appellant
Stacks/Goodkamp
LOWER COURTJURISDICTION: District Court
LOWER COURT FILE NUMBER(S): DC 7682/02
LOWER COURT
JUDICIAL OFFICER :
Finnane DCJ


                          CA 40132/04
                          DC 7682/02

                          GILES JA
                          IPP JA
                          TOBIAS JA

                          Wednesday 17 November 2004
THE NOMINAL DEFENDANT v LANE
Judgment

1 GILES JA: The respondent was a passenger in a motor vehicle driven by Mr Layne Willis. On 16 October 1999…

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AGLC
Nominal Defendant v Lane [2004] NSWCA 405
Case
[2004] NSWCA 405
Decision Date

CaseChat Overview and Summary

This case concerned an appeal and cross-appeal from a judgment in favour of the plaintiff, Mr Lane, against the Nominal Defendant, arising from a motor vehicle accident involving an unregistered vehicle.

The primary legal issues before the court were whether the trial judge erred in finding the Nominal Defendant liable, specifically concerning the interpretation of "repairs of minor defects" and the application of an economic test for the ease and cost of repair. Further issues included whether the trial judge erred in assessing contributory negligence, considering the plaintiff's subjective appreciation of the driver's intoxicated state, and whether the damages awarded for future economic loss, including the possibility of becoming an enrolled nurse, were permissible under section 126 of the *Motor Accidents Compensation Act*. Finally, the court considered whether an error was made in the allowance for respite care.

The court held that the trial judge did not err in applying a substantially economic test to determine if defects were minor, nor in finding that the vehicle was not capable of being registered due to the nature of its defects. The assessment of contributory negligence was also upheld, as the plaintiff was found to have known or ought to have known of the driver's condition. Regarding damages, the court found that while the trial judge's reasoning did not fully address section 126 of the *Motor Accidents Compensation Act*, it was permissible to make an allowance for the possibility of better future circumstances, such as the plaintiff becoming an enrolled nurse. However, an error was identified in the allowance for respite care, which should only have been awarded for the period of gratuitous care, not for the subsequent period of professional care.

Consequently, the appeal was allowed in part, and the cross-appeal was dismissed. The original judgment was set aside, and a substituted judgment amount was to be calculated by the parties. The appellant was ordered to pay 90 per cent of the respondent's costs of the appeal and cross-appeal.

Orders

Orders of the court

(1) Appeal allowed in part; (2) Cross-appeal dismissed; (3) Set aside the judgment for $2,688,382, and in lieu thereof judgment for such substituted amount calculated in accordance with these reasons as the parties notify the Registrar within seven days, taking effect on 30 January 2004; (4) Liberty to apply in the event of disagreement over the substituted judgment amount; (5) Appellant pay 90 per cent of the respondent's costs of the appeal and cross-appeal.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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